Complainant

Respondent

Parties

Vladyslav  Piddubnyi

GSA Associates  

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00060754-001

18/12/2023

The complainant says that he was underpaid by the respondent on a number of occasions to a total of seventy-nine hours and a loss in wages of €892.70. He was paid €11.30 per hour.

The complainant gave evidence on affirmation. (The interpreter also made the affirmation)

The payment due dates and shortfall are as follows (all 2023); July 24th, thirteen hours, July 31st, fifteen hours, September 5th, fourteen hours, September 11th, nine hours and September 22nd, twenty eight hours.

In his evidence and in response to questions he said that he did raise the issue at the time but was advised to wait and not to press it further. He did not present any documentary evidence of the claimed hours to the respondent (nor could he provide it to the hearing).

Mr Brian Kelly, on behalf of the respondent, a contract cleaning company, also gave evidence on affirmation.

He said that there had been a change in its system for recording working hours which was done by means of ‘clocking in/out’ on  a smartphone App. There were difficulties in getting the complainant to operate the app and he was followed up on this but to no avail.

He could not see how the complainant could be owed such a large tranche of hours based on the weekly expenditure with the client where the complainant was deployed which showed no significant difference in the pattern of hours.

He conceded that there may be a small number of hours owed to the complainant  (four) but nothing on the scale claimed. 

He also noted that the complainant had not followed up on any of these claimed hours at the time

The complainant has claimed he is owed €892.70 in wages which for a worker on €11.30 per hour would be a significant shortfall in earnings due to him.  Given that he worked only fifteen hours per week it is somewhat in excess of a month and a half’s wages.

While the burden of proof in such a case falls on a complainant, the WRC hearing process allows for an Adjudicator to inquire into the facts of a case in some detail, especially in the case of unrepresented complainants who may be unfamiliar with the tribunal process.

In this case while the complainant gave good oral evidence, the lack of any supporting documentary material seriously undermines his complaint. 

Apart from anything else, his failure to present the detail of his alleged unpaid hours at any stage to either the respondent or the WRC meant that his employer, who was best placed to address the detail of this at local level was not given the opportunity to do so, including in preparing its response to the complaint at the hearing.

Bear in mind that counting the first alleged incident of underpayment (July 24th, 2023) and the last (September 22nd) there were a total of five incidents over a two-month period which did not seem to disturb the complainant sufficiently to pursue it more rigorously, despite the significant shortfall alleged by the complainant.

For example, the first alleged shortfall resulted in an underpayment of €135.60, the second on July 31st of €169.50 and yet the complainant demonstrated a surprising lack of urgency about recovering these sums due to him

He did not refer the matter to the WRC for another two and a half months, (and named the wrong  respondent when he did so) in the course of which time no further contact was made with the actual respondent, his former employer.

So unfortunately for the complainant, this is not a complaint that can be decided on the basis of some loose assessment of the credibility of his evidence or the probability of what might have happened. The phrase required to be used by Adjudicators in reaching a conclusion on a complaint (and derived from the language in the WRC founding statute) is that, to succeed, a complaint must be ‘well founded’. A synonym for this is the word ‘established’, which will explain the burden of proof.

He submitted some information after the hearing on his own initiative, but he had every opportunity to do so at any stage since making his complaint in December 2023 and he had not done so.

The information was not particularly illuminating and bearing in mind that this was the second hearing into the complaint (the first was adjourned as he had named the wrong respondent) I did not consider that it merited a third hearing, or an extension of the process.

The complainant has failed to make out his complaint to any minimum level of proof or evidence and accordingly I decide that it is not well founded.

For the reasons set out above I decide that Complaint CA-00060754-001 is not well founded.

Payment of Wages